Monday, 31 August 2015

I may be out of step with the times, but I am convinced that what has been happening at Jantar Mantar in Delhi over the last two months exemplifies neither discipline nor loyalty nor patriotism, notwithstanding the vaunted claims by the Ex-servicemen League( ESM). There is a regular torrent of abuse( of the government, the civil services and politicians) and vilification flowing from senior ( retired) defense officers, and they have not spared even their Supreme Commander, the President of India- just yesterday he was sent a letter by the ESM holding him responsible for " any damage or mishap" that may occur to the hunger strikers, and accusing him that "under your rule a soldier's life is at stake....". So much for devotion to the country.

There is more. The tone and tenor of their statements ( and that of some retired Chiefs who, having compromised themselves earlier by quietly accepting OROP for themselves and dumping their " boys", really have no moral right to protest now) are becoming noticeably menacing and threatening. One day we are warned that the ESM is in touch with serving soldiers and heaven help the country if disaffection spreads to the armed forces. The next day we are told that helping the civil administration in case of natural disasters is not the army's job, and what will the govt. do if this assistance is denied? A retired Chief cautions the govt. on television that these guys are not trade unionists but soldiers, that they know how to fight and will not back down. To me this is coming uncomfortably close to incitement and downright blackmail.

And then there is the final irony- a group of ex-soldiers who claim to be totally apolitical now indicating that they could jump into the Bihar election to muster support for their cause ! Make up your minds, gentlemen- are you ex-soldiers or an aspiring political outfit, which is what you are increasingly looking like with your rebellious statements and open defiance of the govt.?

As I've categorically stated earlier ( THE BITTER TRUTH ABOUT OROP) there is a strong case made out for compensating soldiers for their early retirement but this is limited to the jawans and ORs, not the officers. The former retire between the ages of 35 and 38 and constitute 85% of the total strength of the armed forces. The officers have it much better- every commissioned offer retires in the time scale of a Colonel at 54, and then has the option of 4 years of reemployment within the force itself. He effectively retires, therefore, at 58 ( as against 60 for the civil services, not such a significant " discrimination" as the ESM is making it out to be), with the full notional benefit of 33 years service for computing his pension. Even these two years are the result of the doctrine of having a " young army" and not because of any conspiracy by the govt. to keep the army subjugated, as is being constantly made out by ESM. The sheer nature of their job demands a degree of physical fitness that declines with age. Take the converse- Doctors and Professors in higher medical and educational institutions retire at 65 because in their case the primary consideration is not physical fitness but intellectual ability and acquired expertise. Nobody- not even the IAS!- grudges them this because the rationale is reasonable. It is the same with the armed forces.

The ESM has been very economical with the truth when it talks about discrimination with the armed forces in the matter of pensions. It fails to mention, acknowledge or accept that the govt. has already provided them with a massive advantage over the civil services. Civil service officers who have joined service on 1.4.2004 and thereafter are no longer entitled to assured pensions from the govt. They are now enrolled in the NPS ( National Pension Scheme), a fund to which both the employee and the govt. contribute a fixed percentage of salary every month. The pension payable depends on the profits generated by the NPS fund. In other words, there is no longer an assured percentage of pension for civil employees. BUT THE GOVT. HAS KEPT THE ARMED FORCES OUT OF THE NPS-THEY CONTINUE TO ENJOY THE BENEFIT AND SECURITY OF ASSURED PENSIONS. Be honest to yourself at least, Generals, if not to the country.

Another myth that needs to be busted is that armed forces officers are denied the promotions that their civil counterparts are entitled to. I personally agree that the promotion bandwagon in the higher civil services has gone berserk and this self serving policy needs to be drastically pruned. But this does not render the ESM's claims for a similar absurdity in their case legitimate. For the same reasons of operational effectiveness the army perforce has to have an acute pyramidal structure, which naturally puts limits on promotional avenues. This is an imperative of the service which all the members of the ESM were doubtless aware of when they joined NDA or IMA. Why try to smuggle this demand through the backdoor when you entered from the front?

The same logic applies to the constant outcry about hardship postings, non-family stations, casualties etc. It goes with the territory and the uniform, which is why the armed forces are respected. These conditions are not peculiar to the Indian army either but are part and parcel of all armies across the world. In fact, service conditions are much worse in the police and the CPMFs. The govt. has been making attempts to compensate for some of the harsher conditions by providing generous allowances, which the ESM is not factoring in in the discourse. It does not behove a fine and proud armed force like ours to constantly wail about these things. After all ours is not a conscripted armed force but a voluntary one, and if you can't take the heat don't enter the kitchen.

In fact, it is now clear that the officer cadre is riding piggy back on the jawan to extract the maximun benefits for themselves. It now appears that the jawans and ORs( including the NCOs and JCOs) have seen through this game: it was reported yesterday in the Hindustan Times that the ORs have now decided to float a separate body called the All-India Ex-servicemen ( AIE), and this is what their co-ordinator Bir Bahadur Singh had to say: " The OROP movement has been hijacked by the officers who normally have been given lots of advantages. It is our legitimate rights that have never been taken into consideration."

This is a significant development, and the central govt. should take note of this, because it brings the spotlight exactly where it should have been focussed all these days- on the jawan. It is precisely at this level that the healing touch and correction/ rectification measures need to be applied ( and not through OROP, which is a diversionary smoke screen). Not that the govt. has not made attempts to do so in the past. A little known fact is that till the Third Pay Commission a jawan served only for 5 years and was not entitled to any pension. ( INDIA TODAY, August 17, 2015). It was only in 1973, on the recommendations of the TPC, that he was not only given a tenure of 15 years but also made entitled to pension. But much more needs to be done, because he still retires at 35.

The solution, as I've been maintaining, does not lie in the easy and financially disastrous OROP formula. A country which gives 50% pension to an individual for 50 years for having served for 15 years cannot but be both intellectually and financially bankrupt. The best solution to this vexed problem is already on the table before the govt.- lateral induction into the police and CPMFs. In fact this was suggested by the Sixth Pay Commission but the central govt., no doubt under pressure from the police and CPMFs, chose to ignore it. Opposition from the latter is to be expected for a number of sordid reasons for which one does have the time here, but Mr. Modi has to override his bureaucracy and political colleagues and implement this recommendation of the SPC. It will at one stroke remove the just grievances of the ORs and jawans, improve exponentially the image and effectiveness of the police and CPMFs, eliminate the need for any OROP, prevent a similar agitation by the civilian employees, save the country thousands of crores and ensure we do not go the way of Greece.

It is time for the ESM to back down and enter into meaningful dialogue with the central govt., show some flexibility, and cease putting themselves on a pedestal. They say they are not trade unionists but are behaving exactly like them. Stop this blackmail, for it is engendering indiscipline and tarnishing the image of the Indian soldier which we hold in high esteem. Discuss with the govt. the real issues that bedevil the jawan and do not try to feather your own nest by using him as a proxy. Don't try to bankrupt a country you have sworn to protect.

As for Mr. Modi, we have been waiting for 16 months for him to show some real leadership. His time starts NOW.

Monday, 17 August 2015

The current debate about OROP ( One Rank One Pension) has become infused with too much passion, emotion, recriminations, frustration and downright prevarication. This, though perhaps understandable, is not healthy because it tends to blur and take the focus away from the hard issues involved, and prevents a rational analysis of the problem. The plain fact is that OROP is just not implementable, and the sooner the Govt. comes out with an open admission on this, and stops leading the defence forces down the garden path, the better.
The govt. consists of scores of departments( of which the armed forces are also a part), thousands of categories of posts and hundreds of pay scales/ ranks. Their remuneration, promotion avenues, pensions have been arrived at after decades of deliberation and many Pay Commissions. There are intricate linkages between them ( called " equation" in govt. parlance): the whole structure is like a huge spider web in which all the strands are inter-connected, and disturbing just one cobweb destabilises the entire structure. The demand for OROP threatens to do exactly this, and this is why the govt. is unable to take a decision on this controversial issue.
The basic premise of OROP is inherently flawed. One's pension is inextricably linked to one's salary at the time of retirement and not to the salary of the same post twenty years later. That is why Pay Commissions, every ten years, do not link past pensions with current salaries but provide a percentage growth to those pensions. This is true of not just the armed forces ( as some may think) but of the entire govt. structure, including ALL civilian posts- with one exception.This exception is the " causus belli" or the root of the problem. Many years ago the IAS contrived a sleight of hand( at which we are past masters) to ensure that the highest echelons of the elite civil services, at least, get the benefit of OROP ! This is how it was managed: the highest pay scale in govt. ( currently) is Rs. 80000/ fixed. ( only the Chiefs of the three defence forces and the Cabinet Secretary are in the fixed scale of Rs. 90000/.) It was decreed that all who retire in this scale( known loftily as the Apex Scale) would get OROP- that is, their pensions would always be linked to whatever revised Apex Scale the subsequent Pay Commissions decided. Since every single IAS( or IFS) officer retires in the Apex Scale this forever ensured OROP for themselves. To reduce any opposition to the strategem, some Apex Scale posts were also made available to other All India services.The top brass in the armed forces were also party to this decision, for they also got a share of the pie. Take the Army. The Apex Scale has also been provided to the VCOAS, Army Commanders, Lt. General( NFSG) and one third of the total strength of Lt. Generals in the force. The same applies to their counterparts in the other two forces. This may perhaps explain why we have not heard the top echelons of the forces coming out in public support of the demand for universal OROP.
Giving OROP to just the Apex Scale was a bad and inequitable decision, and all the elite civil services and the armed forces were party to it. So, don't just blame the " babus" please.
The chickens have now come home to roost and they're making quite a racket over it, as chickens will do. Extending OROP to just the defence forces is neither fair, nor possible. It is not fair because, emotive claims apart, they are not the only ones serving the nation- the primary school teacher in a Naxal village in Dantewada is also doing so, the coal miner spending twelve hours every day in the pitch darkness of a flooded mine in Jharia is also doing so, the fireman rushing into a burning building in a Mumbai slum is also doing so. Nor does it help the cause to quote statistics about the number of caualties- the para military forces and some state police forces have consistently had higher casualties than the army over the years. Demanding a special dispensation on the basis of an exclusive claim to patriotism is never a good idea- it has tinges of a hubris that does not go well with the concept of selfless service.
The acceptance of the OROP demand is also not practically or legally possible, because it cannot be limited to the armed forces only, and any extension to other services and departments will bankrupt the govt. for all times. The stirrings have already started- the Central Para Military Forces, the Railway unions, some Associations of central govt. Ministries- have already given ominous hints that if OROP is allowed to the armed forces it cannot be denied to them. So we're no longer talking of just 22 lakh ex-servicemen and 6 lakh widows- we're talking of tens of millions of central and state govt. employees. We're no longer looking at a financial implication of Rs. 8000 crores but ten or twenty times that. Its a no brainer.
And yet there are some aspects of the demand of the armed forces that are legitimate, that are peculiar to them, and which any sensitive govt. has to consider sympathetically. The primary one for me is their early retirement ( especially for the jawans and ORs) and subsequent unemployment with relatively low pension rates. The solution to this vexed imbroglio has to come out of the box and not from any manual of the finance department. Although it is certainly presumptuous of me I would make so bold as to suggest the following steps as an alternative to OROP:

* Eradicate the root and genesis of the problem--- abolish the OROP benefit provided only to the holders of the Apex Scale and cover them under the same formula of pension as applicable to others. This may occasion some resistance from about twenty thousand or so of our plastic frame and a few defence brass but it would remove the heart burning of many millions of others and restore equity.* Provide higher pay scales to members of the armed forces to compensate them for their shorter service tenures and lack of promotion avenues. In order to do this the bureaucracy should once and for all give up the specious notion of maintaining "equations"- there are no equations between apples and oranges.* Increase the gratuity available to ORs and jawans.* Provide 50% reservation for jawans and other ORs in all central para-military and state police forces at appropriate levels. Not only would this single measure provide gainful employment to them for another 25 years, it would also considerably enhance the image and effectiveness of these forces because of the sterling qualities of discipline and integrity which these ORs would bring with them. I calculate that there would be about 30000 retirees from the army every year- the annual vacancies in the para-military and police forces would be many times this number, so adjusting the former should pose no problem. Ex-servicemen Directorates already exist at the Centre and in the states and they can maintain the data of retirees and forward the names against requisitions.

OROP is a mirage which will never materialise. If the lot of our ex-servicemen is to be improved and their obvious career disadvantages compensated, suggestions like the above have to be considered. Mr. Modi should learn a thing or two from the armed forces- instead of a head-on confrontation with them he should execute a flanking manoeuvre.

Thursday, 6 August 2015

This is not an article about the religious, moral, retributive or utilitarian basis for opposing the death penalty. This is also not about Yakub Memon or the arguments for and against his hanging. This is not about terrorism, or Pakistani/ Isis inspired terrorists. It is not about the Mumbai riots or the Mumbai bomb blasts, either. It is not about Islamic terror or Saffron terror or about other convenient labels that make for animated discussions in TV studios or Parliament. It is about our legal eco-system and its fitness and professional integrity to qualify it for putting people to death. Muslims, Hindus and Sikhs.

Such a health check is necessary, because at this very moment 1617 condemned human beings are awaiting death in our prisons. I'm guessing that the majority of Indians would say that they are dangerous to society, like a cancer, and like any cancerous growth must be excised from our body. An apt simile, no doubt, but it must be remembered that carcinomas are removed on the basis of irrefutable, scientific, proven evidence- not on assumptions, subjective surmises and arbitrary guidelines. If I could have the same faith in our legal system that I would have in a diagnosis of cancer by a competent medical institution, I would not be having the doubts about capital punishment in our country that I have today.

Added to this is a mounting pile of evidence across countries that makes the sheer finality of this sentence blood-curdling, forcing us to think again whether we are omniscient enough to play God. The latest findings of the National Law University, Delhi clearly prove that the death penalty is disproportionately applied to the marginalised, the poor and the minorities. This is also the evidence in the United States where a black is three times more likely to be executed than a white. And the real chilling finding, by the National Academy of Sciences in the USA: that at least 4% of capital convictions were found to be totally wrong! This figure is bound to be many times higher in a country like ours ( for reasons given later in this article), and therefore is bound to raise the question: is our legal system so perfect as to permit us to kill other human beings in cold blood ?

A legal eco-system consists of three layers: the LEA( Law Enforcing Agency), the Judicial System and the Government. The first carries out the investigation, the second conducts the trial, and the third legislates the laws, including mercy petitions and pardons. It is my submission that all three are so badly flawed in India that we might as well toss the ( loaded) dice to decide who gets to hang.

The LEA first, which means the police. Today in India NO ONE trusts police investigation- not the govt., not the opposition, not the public, not the judges. The trend is to demand a CBI investigation into every major crime, and not without reason, for state police investigations are perceived to be guided by money, political expediency, career progression and increasingly now by TV debates. The whole effort is to quickly nail the most convenient candidate, and not to get at the truth: this is not a hypothesis but a fact, as the abysmal conviction rates demonstrate. They can ( and do) steer investigations into letting the guilty off the hook ( as the unfolding Vyapam case and the burning to death of a journalist in UP, allegedly at the instance of a Minister, shows); or in framing innocent persons, as evidenced in the Pandher and the Arushi murder cases. The most blatant example of this, of course, has to be the Hashimpura mass murder of 40 Muslims by the PAC- after 33 years all 21 accused policemen were let off for want of evidence! Evidence is created or destroyed, witnesses are intimidated or bought off or even killed, as the Vyapam and Asa Ram cases have shown, post mortems are manipulated, records are conveniently lost. What ultimately lands up in courts is either a deliberately weakened case or a concocted one. To condemn someone to death on the basis of these types of investigations is, to me, a crime no less than the one the person is accused of. The LEAs are ever willing to pander to political influence and go slow in the investigation of cases the govt. of the day finds inconvenient, even cases involving terrorist activities and large number of deaths. The Samjhauta blasts, the Malegaon bombing, the Mumbai riots of 1993, the massacre of Sikhs in 1984- these are prime examples of how the police can be used to protect mass murderers from the death penalty. Inevitably, in a few more years all evidence will have disappeared ( this has already happened in the Sikh killing cases) and everyone can live happily ever after.

This is not to say that that all police investigations are tainted or flawed; many convictions must be correct- but that is not the point. The point is that, once the credibility and fairness of a process is irretrievably damaged, all its outcomes become suspect.

Our judicial system is only marginally better. The growing perception among the citizens ( one voiced by many eminent jurists also of late) is that the kind of justice you get is dependent on your political clout and wealth, which only can ensure the marquee lawyers who can sway the courts. How else does one explain a Salman Khan getting bail in a matter of hours, a Jayalalitha's conviction being stayed with the same alacrity, a Nanda walking free after only a couple of years inspite of deliberately killing a number of people and destroying evidence, an eminent lawyer continuing to practice inspite of being caught on tape suborning and influencing witnesses in an important murder case ? The list is endless.

The fairness of our trial system is tested in other ways also, and found wanting. One expects judges to be proactive in sifting through the quality of evidence in at least important cases relating to murder and rape, especially given the stratagems adopted by the police. One rarely sees this happening, or any application of mind. The most telling illustration of this were the Jessica Lal and Nitish Katara cases, in which the accused would have just walked away had it not been for the sustained pressure by the media and civil society. Thousands of other similar cases probably just drop through the cracks in the judicial system, unnoticed.

Equity is lacking also in the manner in which cases are taken up for hearing, leading to justified suspicion of pick and choose. Why is there still no closure in the Uphaar fire case in which dozens died due to established negligence, even 18 years later ?- the Ansals got a paltry one year sentence ( yes, for proven negligence leading to the death of 67 persons!), and even that is being appealed in courts and there has been no date given for two years! Why is the Supreme Court unable to find time to dispose off the appeals of the Nirbhaya convicts, a case which the govt.had promised to fast track, even though it has time for the Chautalas and Sahara Shris ? I suppose justice is being done but it certainly does not appear so, and perception is all that matters in the dispensation of justice.

These murky waters have been further muddied by the Supreme Court in a few judgements relating to capital punishment. I refer to the " rarest of rare cases" doctrine and automatic commutation of death to life imprisonment in cases of delay in deciding mercy petitions. Though well intentioned, these orders display a tint of hubris and confound an already confused subject. They introduce a discretion, subjectivity and arbitrariness into a process already lacking in transparency and equity. And they're not working. The Supreme Court has itself admitted that seven of its death penalty orders were erroneous, contrary to the rule of the rarest of rare and were incuriam. If death penalty is to be given only in the rarest of rare cases then how come 1617 people have been condemned to hang in just the last fifteen years ? Why should my life depend on the discretion of a judge who may be having a bad day, or just doesn't like my face ? A Supreme Court or a High Court judge may use his discretion wisely , but can we expect the same from every Sessions judge holding court in a hinterland steeped in casteism, family rivalries, criminalised politicians and obscurantism ? It is precisely this kind of subjectivity which enabled Dara Singh to escape the gallows even though he had locked up a missionary and his two minor sons in a car and then set it on fire, roasting them alive. This cold blooded murder cum infanticide was not deemed to be a rarest of rare case. Some degree of discretion in law is inevitable but the constant effort should be to minimise it, not increase it as the Supreme Court has done.

Even more subversive of justice is the doctrine that delay in deciding mercy petitions shall lead to commutation to life. This short-sighted fiat has thrown open the doors of discretion to the govt., one agency which can NEVER be trusted to use it wisely or fairly.

The govt. is the third layer in the justice system and one more concerned with the politics of justice than its equity or fairness, It has used the doctrine of delay to the hilt for its own political ends, whether at the centre or in the states . Its shameless misuse for political ends has ensured that the killers of an ex- Prime Minister have been granted commutation( and may even be released prematurely if the Tamil Nadu govt. has its way), and that the killers of Beant Singh may well receive the same relief. Furthermore, the govt. has the discretion to decide one mercy petition and keep the others pending, depending on who it wishes to hang and who it wants to save. Petitions should be disposed off according to their place in the queue, but that's not how the system works: the petitions of Kasab, Afzal Guru and Memon were all made to jump the queue and quickly decided( rejected) with the last being taken PERSONALLY by the Home Minster to the President at night, while other, older ones are still pending. This is unscrupulous manipulation of a dubious doctrine to begin with.

This then is the reality of the larger criminal justice eco-system in India. It is plagued with inconsistencies, corruption, opaqueness, subjectivity, discretion, cronyism, hubris and plain gutter politics. It shows no mercy or compassion to the poor and disadvantaged, indeed, it singles them out for its own brand of justice. Even in the best of societies, as Faiza Mustafa noted in a recent article, " human judgements are never so certain as to permit society to kill a human being judged by other human beings." To permit it in a fractious and dysfunctional society like ours is an abomination. All reasonable Indians should strive to ensure that we join that group of one hundred nations which have abolished Capital punishment. We should not play God, especially when there will never be a consensus on whose God is the right God.